Attestation and

Registration
Ajey Sangai

Conditions for valid

transfer of title
Section 123, TP Act. Transfer how effected
For the purpose of making a gift of immovable
property, the transfer must be effected by a
registered instrument signed by or on behalf of the
donor, and attested by at least two witnesses.
For the purpose of making a gift of movable property,
the transfer may be effected either by a registered
instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as
goods sold may be delivered.
Three requirements for valid transfer: (i) execution
(ii) attestation and (iii) registration

Attestation
Purpose: verification of the voluntary execution of
the transfer deed in case of doubt or to contradict
the transferor in case s/he denies making that
transfer.
Difference between the English and the Indian
Law
Attestation after personal acknowledgment of the
transferor
Whose presence is required in the process of
attestation?
Indian Law: Only transferors presence when the
document is attested not vice a versa.

Two types of witnesses: (a) Identifying; (b)

Performa
IN WITNESS WHEREOF the parties herein have
affixed their respective signatures to this deed at
_______________ on this ______________ day of
______________ year in presence of the witness:
WITNESSES:
1.________________

____________
SELLER

2.________________
____________
PURCHASER

Ingredients of Attestation
(S.3)
Attestation by two or more witnesses
Either seen the transferor signing the document or
someone else on her/his directions.
If not that, personal acknowledgement of the transferor
of the valid signature.
Witnesses must sign the document in the presence of the
transferor and after the latter has signed the document
Sant Lal v. Kamala Prasad, AIR 1951 SC 477 (6 witnesses,
yet invalid)

Both witnesses are not required at the same time even

both of them can be dispensed away with (personal
acknowledgement)
There is no specific form of the attestation
Attesting person must be competent to contract
(although TP Act does not mention so.)

Who can attest a deed?

Scribes
Brij Raj Singh v. Sewak Ram, (1999) 4 SCC 331 (Plaintiff
received land by a gift defendant (tenant) denied Ps title
and P filed a suit for the possession of property. Scribes
signature at 3 places in different capacities: scribe,
identifying witness and attesting witness.)

Parties to the transaction v. Parties to the deed

Kumar Harish Chandra Singh Das v. Bansidhar Mohanty,
AIR 1965 SC 1738 (One friend wanted to help the other but
could not ask for security, took help of the third person)

Any person with Animo Attestandi (Physical act +

Mental Act (intention to authenticate))
M.L. Abdul Jabbar v. Venkata Sastri, AIR 1969 SC 1147

Topic 2

REGISTRATION

Compulsory Registration
Section 17, Registration Act, 1908: Documents of
which registration is compulsory:
Instruments of gift of immovable property
other non-testamentary instruments which purport or
operate to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or
interest, whether vested or contingent, of the value of
one hundred rupees and upwards, to or in immovable
property;
non-testamentary instruments which acknowledge the
receipt or payment of any consideration on account of
the creation, declaration, assignment, limitation or
extinction of any such right, title or interest;
Leases of immovable property from year to year, or for
any term exceeding one year, or reserving a yearly rent.

Description of Property
At the end, the transfer deed of an immovable
property, to be presented for registration, carries a
schedule of the property in question.
Section 21, Registration Act states that every
instrument of non-testamentary transfer of a
property must provide a description of property
with details SCHEDULE
sufficient OF
to identify
it.
THE PROPERTY
(Conveyed under this deed)
All the piece and parcel of immovable property (depending on
the property) bearing No.____________
Measuring _______________
Bounded by:On the East :
On the West :
On the South :
On the North :

Other requirements
Document/deed needs to be presented for
registration within 4 months of the execution. (S. 23)
Delay: If within four months, then the Registrar may
register the document subject to the payment of fine
which may extend to 10 times the registration fee.
Place for registration: with the sub-registrar within
whose sub-district the property is situated.
Who shall present the document for registration?
person(s) executing the document or person(s)
claiming under them;
Representatives or assigns of such person
Agents or representatives duly authorized by the power
of attorney.

Registration Fee is fixed by State Government

Effects of registration
Section 47: A registered document operates
retrospectively from the date when the
transaction was made and not from the date of
registration.
Section 48: Registration prevails over the oral
agreements unless it is accompanied or followed
by delivery of possession.
Effects of Non-registration (Section 49):
Title in the immovable property is not transferred
Unregistered document is not received as an
evidence of such transfer.

In case of deeds relating to land, the registered

documents prevails over the unregistered
documents (Section 50)

Registration as Notice
What is notice?
Actual
Constructive

Registration acts as a constructive notice.

[Explanation I, Section 3]
Transaction required by law to be and has been
effected by a registered instrument
Transferee is deemed to have notice of the
instrument
From the date of registration only for the subsequent
transfers.

All purchasers are under a legal obligation to

exercise diligence in examining the title recorded
in the register.

Part III

STAMP DUTY

Introduction
Stamp Duty is a tax imposed on documents that effect or
purport to effect creation, modification, extinguishing and
declaration of any right.
The documents/instruments without requisite Stamp Duty
are not allowed as evidence by court.
Stamp Duty is imposed under Indian Stamp Act, 1899. It
is paid to the Collector of Stamp appointed by the state
government.
All the instruments listed under the Schedule I of the Act
are liable to be charged with stamp duty (Section 3).
Transaction comprising of several matters separately
chargeable: Proper Stamp Duty = Aggregate sum of
stamp duty levied on each component.
States have been given power to levy the stamp duty.
Hence, it varies from one state to another.

Requirements
That stamp duty has been paid also needs to be
mentioned
in the
the property
instrument.
Market
value of
conveyed under this
deed is Rs.____________ (Rupees
________________________________ only).
The Stamp duty is paid on the market value as
computed above.

Types of stamps
Adhesive Stamp (includes stamps that are pasted on
a paper, generally for smaller matters)
Impressed Stamp (includes embossed or engraved
stamp e.g. stamp paper, for larger transactions)

Impressed Stamp (Stamp

Paper)
Section 13: Every instrument written upon paper
stamped with an impressed stamp shall be written
in such manner that the stamp may appear on the
face of the instrument and cannot be used for or
applied to any other instrument.
Section 14: Only one instrument on one stamp
paper
Non-compliant document is deemed unstamped.
Instruments stamped before or at the time of
execution.
Buy stamp
paper

Execute the
document

Certificate
from
Collector

Attestation

Registration

Valuation of Stamp Duty

Stamp duty is chargeable on the consideration
disclosed in the document of conveyance
Stamp Duty is prescribed by state government.
Market value of a property is estimated by the
Collector and based on that valuation the stamp
duty is done.
Collector has the power to impound the document if
it is unduly stamped (Section 40)
Who shall pay the stamp duty? Sale (Purchaser);
Lease (Lessee); Mortgage (Mortgagor)
Illustrations:
A mortgages a house of the value of Rs. 10,000 to B for
Rs. 5,000. B afterwards buys the house from A.
Suppose C buys the property instead of A?